COURT FILE NO.: CV-21-00003646-0000 DATE: 2022 03 21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

2110120 ONTARIO INC. o/a CARGO COUNTY, RANDEEP SANDHU, KIRANJIT SANDHU, EVANDEEP SANDHU, and PAWELDEEP SANDHU

Plaintiffs

and

GURMUKHJEET BUTTAR, KARANDIP BUTTAR, DHARAMJOT CLAIR, PARBAT SANGHA, NAUJAWAN SUPPORT NETWORK, JOHN DOE and JANE DOE

Defendants

HEARD: March 04, 2022

RSJ L. RICCHETTI

ENDORSEMENT

on s. 137.1 Motion

THE MOTION .. 3 THE ACTION .. 3 THE FACTS . 4 The Personae . 4 The Four Individuals . 6 G. Buttar 6 K. Buttar 6 Clair 6 Sangha . 7 Status of CLC Complaints as of the beginning of September 2021 . 7 The Actions of the Four Defendants, NSN and WAC in the Fall of 2021 . 8 The Response of the Moving Defendants . 13 Affidavits . 13 Examinations under oath . 15 The Role of NSN and WAC .. 16 Communications . 16 Damages . 17 THE LAW ... 17 The Approach . 19 Section 137.1 Motions are not Summary Judgment Motions . 20 Is the Expression a matter of Public Interest? . 21 THE ANALYSIS . 21 Comments on NSN and WAC .. 21 The Expressions . 22 Are the expressions, in this case, a matter of Public Interest? . 22 The Actions . 29 CONCLUSION .. 31 COSTS . 32

THE MOTION

[1] This is a s. 137.1 motion under the Courts of Justice Act by Gurmukhjeet Buttar (“G. Buttar”), Karandip Buttar (“K. Buttar”), Dharamjot Clair (“Clair”), and Parbat Sangha (“Sangha”) (collectively “the Moving Defendants”) to dismiss this action.

THE ACTION

[2] The action was commenced on October 12, 2021.

[3] The Plaintiffs, 2110120 Ontario Inc. operating as Cargo County Group (“Cargo County”), Randeep Sandhu, Kiranjit Sandhu, Evandeep Sandhu and Paweldeep Sandhu, claim against the Moving Defendants for defamation, trespass, intentional infliction of emotional distress, placing a person in a false light, intrusion on seclusion, and harassment seeking damages in the amount of $17,000,000 as well as a mandatory and interlocutory relief set out in its Statement of Claim.

[4] Paragraphs 15 and 16 of the Statement of Claim sets out the expressions central to this proceeding. The Plaintiffs allege the Moving Defendants made “defamatory and harassing comments online” and a protest on the personal home of the Plaintiffs where the protesters “uttered defamatory, embarrassing, harassing and threatening comment against the Plaintiffs.”

[5] At para. 22 the Plaintiffs allege that the statements and signs stated such things as “pay our drivers now” and “Chor Alert” which means “thief alert”.

[6] No Statement of Defence has been delivered.

THE FACTS

The Personae

[7] The Plaintiff, 2110120 Ontario Inc. operating as Cargo County Group (“Cargo County”), is a trucking company. The individual Plaintiffs are owners and officers of Cargo County (“Principals”).

[8] Each of the Moving Defendants are former drivers for Cargo County.

[9] G. Buttar, K. Buttar and Clair (“three Defendants”) were independent contractors of Cargo County, through personal corporations, having signed documents to that effect at least for income tax purposes. These defendants, as independent contractors of Cargo County, allowed them to be paid by Cargo County at a higher rate plus HST. Their personal corporations were given T4A’s for the Cargo County income and they filed income corporate tax returns taking various deductions they would not have otherwise been able to take if they had been employees for tax purposes.

[10] Whether the three Defendants were employees for the purpose of the Canada Labour Code (“CLC”) is an issue I need not and do not decide. The validity of the CLC claims by these three Defendants is not an issue I need to decide despite both parties filing extensive evidence on this issue.

[11] Each of the Moving Defendants, including the Defendant Sangha, knew each other as they were former housemates.

[12] Naujawan Support Network (“NSN”) is an unincorporated association with members who are activist students, workers and other individuals. NSN, when it chooses to become involved, attempts to assist individuals by bringing public attention to the individual’s particular cause.

[13] In the same manner, Worker’s Action Centre (“WAC”), a non-profit organization, attempting to assist individuals through organizing public actions.

[14] Accepting that NSN and/or WAC may generally have publicly spirited goals to assist individuals who they believe have been oppressed or been taken advantage of, that does not mean the involvement of NSN and/or WAC, in any particular case they choose to become involved with, are always or necessarily expressions nor matters of public interest, protected by freedom of speech, or subject to the application of s. 137.1 of the Courts of Justice Act. The actions and public statements made by or on behalf of NSN and/or WAC must be carefully reviewed in each case based on all the circumstances of the case. In some cases, the cause taken up by NSN or WAC may involve a matter of public interest; others may not.

[15] Putting it this way, individuals engaging NSN and/or WAC do not necessarily gain the protection set out in s. 137.1 just because of NSN and/or WAC’s stated public interest goals.

The Four Individuals

G. Buttar

[16] G. Buttar came to Canada in 2016 as an international student and then obtained a post-graduate work permit. He became a permanent resident of Canada in 2019.

[17] G. Buttar worked for Cargo Canada between June 1, 2019, and August 15, 2020. G. Buttar resigned from Cargo County on August 1, 2020.

[18] G. Buttar filed a CLC complaint on October 16, 2020, advancing claims, as an employee, for repayment of amounts deducted, overtime, vacation pay, and termination/severance.

K. Buttar

[19] K. Buttar has been in Canada since 2017 as an international student. He is presently a resident of Canada on a specialized post-graduate work permit.

[20] K. Buttar worked for Cargo County from June 8, 2019, to October 21, 2020. K. Buttar was terminated on October 22, 2020.

[21] K. Buttar filed a CLC complaint on November 13, 2020, claiming, as an employee, repayment for deductions, and unpaid overtime, vacation, and termination/severance.

Clair

[22] Clair is a permanent resident of Canada.

[23] Clair worked for Cargo County between March 1, 2019, and July 7, 2019.

[24] Clair filed a complaint to CLC on September 10, 2019, claiming unpaid wages and unauthorized deductions (relating to two accidents he was involved in and had agreed to repayment of the damages incurred).

Sangha

[25] Sangha is a resident Canada on a work permit.

[26] Sangha worked for Cargo County between July and December 2019.

[27] Sangha was also involved in an accident in October 2019 which caused damage to the truck and signed a document that he would be responsible for paying the damages caused. This resulted in a deduction from his salary of approximately $2,000.

[28] Sangha has not filed a CLC claim for this alleged unauthorized deduction.

Status of CLC Complaints as of the beginning of September 2021

[29] The status of the three CLC complaints, as of the beginning of September 2021, were as follows:

a) G. Buttar – a preliminary determination by CLC was made in March 2021. A payment order to Cargo County issued for $18,579.82 for unpaid wages and $4,401 for deductions. Cargo County has paid the monies to CLC but has requested a review (which is treated as an appeal to the Canada Industrial Relations Board (“CIRB”)). The monies are held pending the appeal decision. A decision on the appeal had not yet been made.

b) K. Buttar – CLC had not issued a preliminary decision in his complaint.

c) Clair – CLC made a preliminary determination and payment order was made that Cargo County pay $13,427.25 (slightly less than the amount originally claimed by Clair). Cargo County paid the money to CLC and sought a review/appeal of that decision. As of September 2021, no decision had been made on the appeal. The paid monies are held pending the appeal decision.

d) Sangha – no CLC complaint was filed by Sangha. The complaint period for CLC had expired. The two-year limitation period under the Limitation Act was close to expiring (December 2021).

The Actions of the Four Defendants, NSN and WAC in the Fall of 2021

[30] G. Buttar, K. Buttar and Clair were unhappy with the CLC legal process in getting paid their claims, despite having commenced the CLC legal process which was ongoing. They wanted their claims paid immediately.

[31] Sangha’s motivation was to simply try to recover the deducted money without going through any legal process.

[32] The Moving Defendants decided to take their frustration at not being paid promptly and their desire to be paid immediately, to several organizations, including NSN and WAC, and a community legal services organization.

[33] At the request of and the participation of the Moving Defendants, NSN and WAC became involved in pursuing their claims.

[34] The Moving Defendants and the executive director of WAC attended at Cargo County’s offices on September 23, 2021. While the Plaintiffs plead that the attendees at this meeting uttered defamatory and threatening comments, there is no specific evidence of the words or expressions used.

[35] On the same date, Labour Community Services of Peel’s executive director wrote to Cargo County also demanding payment of the claims of the Moving Defendants. Cargo County’s counsel responded, in writing, acknowledging the CLC legal process and suggested it be followed.

[36] Cargo County sought to avoid the threatened public protests by accepting and affirming the CLC legal process, commenced by the three Defendants, would and should be followed. This position to “accept and follow the legal process” remained Cargo County’s position throughout the events that subsequently followed.

[37] That position was not accepted by the Moving Defendants. G. Buttar responded in writing that “they can’t stop us by these legal terms.”

[38] On September 25, 2021, NSN wrote to Cargo County threatening to protest publicly, and to the media, if the claims of the Moving Defendants (including Sangha’s claim) were not paid by October 1, 2021, even though the CLC process for the three Defendants was still ongoing and Sangha had not taken any legal for almost two years. Again, Cargo County responded that it was dealing with the claims through the CLC legal process.

[39] The Moving Defendants organized and attended, on October 2, 2021, a rally at the personal home of Cargo County’s Principals. Approximately, 250 persons attended.

a) All four Moving Defendants were involved in organizing this rally;

b) A large group of protesters walked down the street to the personal home of Cargo County’s Principals, interrupting traffic;

c) All four Moving Defendants attended and participated at the rally in front of the personal home of Cargo County’s Principals;

d) It is unclear whether some of the protesters at the rally (including the Moving Defendants) trespassed onto the Cargo County’s Principal’s personal home;

e) The protesters blocked entrance and egress from Cargo County’s Principal’s personal home (although it is unclear if any vehicles tried to enter or leave the home during this rally);

f) The protesters, which included the Moving Defendants, made threats and harassing statements towards the Principals of Cargo County;

g) The protestors, which included the Moving Defendants, used signs and statements, some with the photo of Randeep Sandhu, stating he was a “thief”, and making statements such as: “pay your drivers now” and “thief alert” (in Punjabi);

h) Specifically, the Moving Defendants held a large banner with the photo of Randeep Sandhu with the words “Chor Alert” which means “Thief Alert”; and

i) Signs and written statements that, Randeep Sandhu was a “thief” or committed “theft” and that the wages of the Moving Defendants were “stolen”, were posted on multiple social platforms.

[40] The personal home address of the Cargo County’s Principals was also posted on social platforms. Flyers were also posted online and distributed by hand at the rally, which stated that Cargo County had committed “wage theft”, “illegal deductions” and other “violations of the law”.

[41] The Moving Defendants (through WAC’s organization) were involved promoting and participating in a “phone zap” where numerous repetitive phone calls to the Cargo County business were to be made. The “phone zap” occurred between October 6 and October 12, 2021. Cargo County received hundreds of phone calls pursuant to this “phone zap”. During these calls, some of the callers repeated the statements made above. There is no dispute that this “phone zap” was intended to and did disrupt Cargo County’s legitimate business activities to put pressure on Cargo County to pay the claims of the Moving Defendants.

[42] There was an organized campaign by the Moving Defendants, with the assistance of NSN or WAC, to negatively impact Cargo County’s webpage, through a concerted effort by supporters to post one-star reviews and negative comments. Comments included: “beware they keep money from drivers without any reason”.

[43] On October 26, 2021, the Moving Defendants (through WAC) conducted an informational picket outside Cargo County’s business. Pamphlets were distributed again stating “stop wage theft” by Cargo County referring to the Moving Defendants claims.

[44] On October 30, 2021, a further protest was held at the personal home of Cargo County’s Principals where similar comments and statements described above were made that Cargo County and its Principals had committed “wage theft” or were “wage thieves” by not having paid the Moving Defendants’ claims.

[45] Another protest rally was held at the Cargo County business premises on December 4, 2021, where the same and similar statements were made to those described above.

The Response of the Moving Defendants

[46] The Moving Defendants do not dispute their involvement in organizing and participating in the actions and statements made above.

[47] The Moving Defendants do not dispute that, at the time of the above actions and expressions, no monies were owing as the complaints were still before the CLC legal process (the three Defendants) or because no claim had been advanced (Sangha).

[48] None of the Moving Defendants explained, in their affidavits, why it was necessary or reasonable to take such actions or make such allegations, where they had commenced a legal process which had not yet been completed to determine whether, what or how much was owing to the three Defendants. Nor was there an attempt to explain why they should be paid immediately without waiting for the legal process to complete.

Affidavits

[49] G. Butta:

• Much of this affidavit attempts to establish that G. Butta’s claim in CLC is a proper and valid claim. As I stated above, that is not for this court to decide.
• He does not dispute that he commenced a CLC complaint, that it remained under appeal in the fall of 2021 and that he knew the CLC preliminary order was under appeal. In fact, he stated “I have not yet received a decision from the Canada Industrial Relations Board.”
• He wanted his money and he wanted it immediately.
• He saw or heard about the WAC and NSN. He attended an NSN meeting.
• He does not attempt to defend or explain the use of “thief” or that Cargo County/Principals had “stolen money”.

[50] K. Butta:

• He attempted to establish why he is entitled to the monies he claimed through CLC. As I stated above, that is not for this court to decide.
• He states: “I participated in actions organized by these groups to support my demand, the demand of my co-workers that Cargo County pay us our wages.”
• He too does not defend or explain the use of the word “thief” or other words/statements used.

[51] Clair:

• He attempted to establish why he is entitled to the monies he claimed through the CLC. As I stated above, that is not for this court to decide.
• He knew that CLC had found only a portion of his claim to be valid but even that decision was under appeal.
• He does not attempt to otherwise explain why he used the word “thief” or other words/statements used.

[52] Sangha:

• He just sets out why he is owed the monies.
• He does not explain why he did not bring a claim either to CLC or through the courts nor why he joined this group almost two years after he left Cargo County.

Examinations under oath

[53] The Moving Defendants admitted:

• They wanted to force immediate payment of the amounts claimed despite the fact there had been no final decision by CLC and no claim by Sangha;
• All of them helped organize and participated in the protests at the Cargo County business and personal home, the “phone zaps” and other actions by NSN and WAC; and
• Had posted some of the negative comments on the Cargo County webpage.

The Role of NSN and WAC

[54] Ms. Dhunna, a member of NSN, admitted that NSN took the lead, with the help of the four individuals, in the public actions described above against Cargo County and its Principals.

[55] Ms. Dhunna admitted that: “This group arose because people go through the Court system, they don’t get justice. People have order to pay… and so we address the pitfalls of the system.” In other words, NSN deliberately sought to circumvent the ongoing legal process to get “justice” through threats of public protests, public shaming and making serious and unfounded accusations of thievery/theft by Cargo County and its Principals.

[56] Ms. Ladd, the executive director of WAC, admitted that she and the organization got involved to, “have Cargo County pay wages owed” to the four individuals. WAC organized the “phone zap” which was posted on Facebook. In other words, WAC deliberately participated in the disruption of Cargo County’s legitimate business despite the fact there was ongoing legal process.

Communications

[57] All the communications throughout the actions described above are directly or indirectly attributable to the Moving Defendants who were involved in the organization and participation in those actions.

[58] The submission by the Moving Defendants that most of the communications “are not attributable to the defendants” is inconsistent with their direct evidence under oath, the photos, videos in evidence as to their admitted participation and involvement in the above communications and actions. This is clearly demonstrated with just one example; the Moving Defendants were photographed posing holding up a large banner with Mr. Sandhu’s photo accusing him of being a “wage thief”.

Damages

[59] I find there is serious and credible evidence before this court that the Plaintiffs have suffered some damages because of the actions and statements set out above, including:

a) Loss of business;

b) Difficulties recruiting new drivers;

c) An employee resigning; and

d) Mental and emotional distress.

THE LAW

[60] Section 137.1 of the Courts of Justice Act ("Act") provides:

(1) The purposes of this section and sections 137.2 to 137.5 are,

(a) to encourage individuals to express themselves on matters of public interest;

(b) to promote broad participation in debates on matters of public interest;

(c) to discourage the use of litigation as a means of unduly limiting expression on matters of public interest; and

(d) to reduce the risk that participation by the public in debates on matters of public interest will be hampered by fear of legal action.

(2) In this section,

“expression” means any communication, regardless of whether it is made verbally or non-verbally, whether it is made publicly or privately, and whether or not it is directed at a person or entity.

(3) On motion by a person against whom a proceeding is brought, a judge shall, subject to subsection (4), dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises from an expression made by the person that relates to a matter of public interest.

(4) A judge shall not dismiss a proceeding under subsection (3) if the responding party satisfies the judge that,

(a) there are grounds to believe that,

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding; and

(b) the harm likely to be or have been suffered by the responding party as a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

[61] The purpose of this section is to protect persons who speak or make statements (expressions) on a matter of public interest by preventing plaintiffs to use the court process and litigation as a tool to limit such expressions.

[62] In 1704604 Ontario Ltd. v. Pointes Protection Association, 2018 ONCA 685, Doherty J.A. provided the following summary of the operation of the legislation, at para. 7:

s. 137.1 allows a defendant to move any time after a claim is commenced for an order dismissing the claim. The defendant must demonstrate that the litigation arises out of the defendant’s expression on a matter relating to the public interest. If the defendant meets that onus, the onus shifts to the plaintiff to demonstrate that its lawsuit clears the merits-based hurdle in s 137.1(4)(a) and the public interest hurdle in s. 137.1(4)(b).

The Approach

[63] Under s. 137.1(3) of the Act, the defendant must first establish that the proceeding arises from an expression that relates to a matter of public interest. See Veneruzzo v. Storey, 2017 ONSC 683, at para. 20, affirmed 2018 ONCA 688.

[64] The purpose of s. 137.1 was described in Pointes:

[45] The purpose of s. 137.1 is crystal clear. Expression on matters of public interest is to be encouraged. Litigation of doubtful merit that unduly discourages and seeks to restrict free and open expression on matters of public interest should not be allowed to proceed beyond a preliminary stage. Plaintiffs who commence a claim alleging to have been wronged by a defendant’s expression on a matter of public interest must be prepared from the commencement of the lawsuit to address the merits of the claim and demonstrate that the public interest in vindicating that claim outweighs the public interest in protecting the defendant’s freedom of expression.

[65] If the defendant fails to establish this, on a balance of probabilities, the motion is to be dismissed.

[66] If the defendant establishes that the expressions are a matter of public interest, then the court must go on to consider s. 137.1(4) of the Act, where the onus shifts to the plaintiff to demonstrate, on a balance of probabilities, both of the following:

a) The claim should not be dismissed because there are grounds to believe that:

(i) the proceeding has substantial merit, and

(ii) the moving party has no valid defence in the proceeding.

(The Merits Analysis)

b) The harm likely to be or have been suffered by the Plaintiff as a result of the Defendant’s expression(s) is sufficiently serious that the public interest in permitting the proceeding to continue outweighs the public interest in protecting that expression.

(The Public Interest Analysis)

Section 137.1 Motions are not Summary Judgment Motions

[67] As stated in Pointes:

[82] While I have stressed that s. 137.1 motions are not a form of summary judgment, nor the proper forum in which to make a detailed assessment of the ultimate merits of the case, I do not mean to suggest that a motion judge must simply take at face value the allegations put forward by the parties on the motion. An evaluation of potential merit based on a “grounds to believe” standard contemplates a limited weighing of the evidence, and, in some cases, credibility evaluations. Bald allegations, unsubstantiated damage claims, or unparticularized defences are not the stuff from which “grounds to believe” are formulated. Similarly, if on a review of the entirety of motion material, the motion judge concludes that no reasonable trier could find a certain allegation or piece of evidence credible, the motion judge will discount that allegation or evidence in making his or her evaluation under s. 137.1(4)(a). Once again, the question is not whether the motion judge views the evidence as credible, but rather whether, on the entirety of the material, there are reasonable grounds to believe that a reasonable trier could accept the evidence.

[83] I would add two further observations with respect to the “no valid defence” requirement in s. 137.1(4)(a)(ii). That provision requires the plaintiff to satisfy the motion judge that there are reasonable grounds to believe that the defendant has “no valid defence” to the plaintiff’s claim. The section would be unworkable if the plaintiff were required to address all potential defences and demonstrate that none had any validity. I think the section contemplates an evidentiary burden on the defendant to advance any proposed “valid defence” in the pleadings, and/or in the material filed on the s. 137.1 motion. That material should be sufficiently detailed to allow the motion judge to clearly identify the legal and factual components of the defences advanced. Once the defendant has put a defence in play, the persuasive burden moves to the plaintiff to satisfy the motion judge that there are reasonable grounds to believe that none of the defences put in play are valid.

[84] My second observation relates to the word “valid”. I would interpret “valid” as meaning successful. The onus rests on the plaintiff to convince the motion judge that, looking at the motion record through the reasonableness lens, a trier could conclude that none of the defences advanced would succeed. If that assessment is among those reasonably available on the record, the plaintiff has met its onus.

[Emphasis added].

Is the Expression a matter of Public Interest?

[68] In Pointes, the Court of Appeal described what constitutes "public interest":

[65] In summary, the concept of “public interest” as it is used in s. 137.1(3) is a broad one that does not take into account the merits or manner of the expression, nor the motive of the author. The determination of whether an expression relates to a matter of public interest must be made objectively, having regard to the context in which the expression was made and the entirety of the relevant communication. An expression may relate to more than one matter. If one of those matters is a “matter of public interest”, the defendant will have met its onus under s. 137.1(3).

[Emphasis added.]

THE ANALYSIS

Comments on NSN and WAC

[69] A great deal of the evidence from the representative of both the NSN and WAC organizations went on at great lengths to set out the public interest aims and goals of the respective organizations and their achievements as evidence of the public interest in the circumstances of the Moving Defendants. As stated above, expressions and actions by NSN and WAC, by them or by persons they represent, is not a guarantee that the expressions and actions are a matter of public interest. The specific facts and circumstances of the statements and actions taken in each case must be scrutinized.

The Expressions

Are the expressions, in this case, a matter of Public Interest?

[70] There is no doubt that the various statements by or on behalf of the Moving Defendants set out above are expressions. I will deal with their actions below.

[71] Are they expressions on a matter of public interest?

[72] The onus is on the Moving Defendants to establish that the expressions are a matter of public interest.

[73] Courts are to interpret the words “relates to a matter of public interest” in a “generous and expansive fashion”, consistent with the legislative purpose of s. 137.1(3), which is, inter alia, to safeguard the fundamental value that is public participation in democracy. The legislative background “confirms that this burden is purposefully not an onerous one”. See Pointes at paras. 26 and 30.

[74] The public does NOT have a genuine interest in expressions that relate strictly to a private dispute, such as a dispute regarding wages between a former employee and the employer.

[75] However, matters of private dispute may also involve matters of public interest. It is not an either-or situation.

There is, after all, a public interest in maintaining peaceful relations between persons in society and in drawing attention to acts of injustice. But the resolution of purely private disputes between more or less equals—disputes that have no immediate bearing on the rights or obligations of others—can seldom be a matter of public interest.

(emphasis added).

See Sokoloff, at para. 19.

[76] Certain corporate oppressive or improper business practices towards employees, such as the abuse of the employment relationship, may be of significance to the community. See Bradford Travel and Cruises Ltd. v Viveiros, 2019 ONSC 4587 at paras. 31-32. The exploitation by any person, employer or otherwise, of young vulnerable persons, with tenuous residency status in Canada, can be a matter of public interest:

Comments or conversations relating to corporations or businesses will more obviously have a public dimension to them. Members of the public or at least segments of the community will have an interest in knowing something about the companies that offer them services. This is true not only from the perspective of the “quality” of the services offered, but also from the perspective of whether or not a member of the public would want to contribute funds to the business/corporation. […] In this respect, a company’s business practices, the conduct of its management, and even the company’s activities in the community will often have significance to the community.

[Emphasis added.]

[77] Where there is a significant financial and power imbalance between an employer and an employee, the exploitation of that power imbalance, is more likely to be a matter of public interest such as where the employer exploits or takes advantage of a vulnerable employee.

[78] In Pointes, at para. 54, Doherty J.A. stated that the court should start by asking: “what is the expression about, or what does it pertain to?”

[79] To determine “what is the expression about”, the entire statements, and the context in which they are made, must be considered. See Pointes at para. 60 and Grant v. Torstar 2008 ONCA 796 at para. 101. See also Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2019 ONSC 4756 at para. 20 where the court stated: “The appropriate inquiry is contextual in nature.”

[80] So, what are the expressions “wage thief” or “wage theft” or “pay your employees now” or “stolen” about in the circumstances of this case?

[81] The most significant and relevant context is that three of the Moving Defendants had commenced a legal process, one which is designed to provide governmental statutorily created protection in and for the claims advanced by the three Defendants and all employee subject to that legislation. This legal process was initiated by the three Defendants. The primary thrust of the expressions and actions was two-fold:

a) To circumvent the ongoing legal process by threats of public exposure, and

b) When the threats failed to achieve their desired results, to publicly make false, misleading, defamatory expressions and take improper actions designed to force Cargo County to capitulate by paying the alleged claims of the Moving Defendants.

[82] And the Moving Defendants admit this was a matter of money for them.

[83] What is the public interest? It is not, in my view, that this employer was exploiting or taking advantage of its employees. The employer was engaged and respected the legal process commenced by the Moving Defendants.

[84] Counsel for the Moving Defendants, in their factum, simply states that the “public interest” is “indistinguishable from this one in respect of the public interest inquiry” relying on Singh v. Sandhu CV-21-3181 (unreported). The Moving Defendants’ reliance on Singh is misplaced.

[85] The facts in Singh, Mr. Sidhu (misnamed Sandhu in the pleading) was a recent international student on a work visa and had worked briefly for Flow Boy Haulage Inc. (“Flow Boy”). He was not paid for several months despite demands. He left the employment without an explanation as to why he had not been paid and with a vague promise he would be paid. Before any public action or impugned expressions, Flow Boy’s principal admitted that he was not paying Mr. Sidhu to teach him a “lesson” or suggested that Mr. Sidhu had to work for a year before being paid or that he caused damages to Flow Boy. All of which raised serious concern and was evidence that Flow Boy was attempting to exploit Mr. Sidhu’s immigration status or new driver status to deprive him of earned wages.

[86] In Singh, there was no attempt to circumvent any legal process.

[87] In Singh, the action was brought on September 3, 2021, after the protests and apparently in an effort to silence the protestors form further public exposure. The CLC claim was brought AFTER the action was brought.

[88] In Singh, the court was satisfied that NSN’s action were not strictly related to a private collection matter (see para. 43).

[89] There were no protests after the CLC claim was advanced. Compliance with the ongoing legal process was NOT an issue raised in that proceeding.

[90] As stated at para. 29 of Pointes, just making “reference to something of public interest” does not make it “relate” to a matter of public interest. Here, the involvement of NSN or WAC or even vague references to the general goals of NSN or WAC does not make the specific expressions used in this case relate to a matter of public interest.

[91] During the hearing, this court asked counsel for the Moving Defendants (on multiple occasions) what the public interest was in the expressions “wage thief” or “pay them now”. Had the expressions been that “the former drivers required to take legal proceedings to recover what they claim is owing” that may have been different. But the deliberate use of words such as “thief” or “stolen” means a deliberate taking of something belonging to someone else without colour of right – a fact not established given the ongoing CLC proceeding.

[92] “Pay them now” is a blatant attempt to force Cargo County to circumvent the ongoing legal process. The NSN admission that the expressions and actions were intended to circumvent the legal process would have a chilling effect on the public’s respect for legal process and, in particular, the CLC statutory process established to protect employees in similar cases.

[93] When questioned on the meaning of “theft” or “thief”, counsel for the Moving Defendants denied that the public would take it as the legal meaning of “theft” or “thief”. That just begs the question – what would the public take from the expressions used?

[94] Counsel for the Moving Defendants agreed that the words “theft” or “thief” or “stolen” were unnecessary to describe a “protest for unpaid wages”. In my view, such words were defamatory and misleading in these circumstances deliberately intended to inflame the public (who did not know the details or background of the claims) and to force Cargo County to capitulate to the demands rather than follow the legal process.

[95] As stated in Pointes:

[75] Indeed, “a statement that contains deliberate falsehoods, [or] gratuitous personal attacks . . . may still be an expression that relates to a matter of public interest. However, the public interest in protecting that speech will be less than would have been the case had the same message been delivered without the lies, [or] vitriol” (C.A. reasons, at para. 94, citing Able Translations Ltd. v. Express International Translations Inc., 2016 ONSC 6785, 410 D.L.R. (4th) 380, at paras. 82-84 and 96-103, aff’d 2018 ONCA 690, 428 D.L.R. (4th) 568).

[96] Counsel for the Moving Defendants submitted that access to justice by the Moving Defendants is relevant and ought to be protected as part of their freedom of speech. I do not accept this submission as the three Defendants had accessed justice through CLC and benefitted from a government statutory investigation and protections. I reject that a dismissal of this claim would have a chilling effect on unpaid truck driver’s access to justice.

[97] Aside from some vague explanation that it tells “others” about the “practices” of Cargo County, no other explanation was forthcoming by counsel for the Moving Defendants. And what is the “practice”? That Cargo County was not entitled to engage in the legal process commenced by the three Defendants?

[98] This is not a case of a large employer using its size and financial power over employees (whether on work visas or otherwise) to deprive them of the amounts due for their employment.

[99] This is not a case where the motivation of making the expressions were designed to bring to the public’s attention matters of public interest, but rather solely to deal with a matter of private interest – a collection dispute.

[100] This is not a case where the expressions were intended to be informational to existing or future drivers or the public about Cargo County’s practices.

[101] This is not a case where the employer brought this proceeding to silence the Moving Defendants from bringing their cause to the public.

[102] I repeat, the goal of the expressions in this case was not to inform the public or truck drivers about the business practices at Cargo County but was intended to pressure and force Cargo County to disregard the ongoing legal process and immediately pay the Moving Defendants the entire amounts claimed. Simply put, NSN, WAC and the Moving Defendants sought to “force” Cargo County to pay NOW the amounts claimed. This was a legal dispute between the Moving Defendants and Cargo County. This concern was significant at paras. 29 and 35 in Sokoloff v. Tru-Path Occupational Therapy Services Ltd., 2020 ONCA 730 and at paras. 22 and 23 of Grist v. TruGrp Inc., 2021 ONCA 309.

[103] In light of the above and considering the “indicia” of a Strategic Lawsuits Against Public Participation (“SLAPP”) suit set out in para. 78 in Pointes, I am not persuaded this meets any of those criteria. See para. 55 of Nanda v. McEwan, 2020 ONCA 431.

[104] I am satisfied that, in the circumstances of this case, the expressions were strictly relating to a matter of private interest. Accordingly, I conclude that the Moving Defendants have NOT established that the expressions are a matter of public interest.

[105] The Moving Defendants motion is hereby dismissed.

[106] Had it been necessary to go on to the second part of the test, the Moving Defendants have not put forward what their defences are to the claims. While a Statement of Defence is not necessary at this stage, the defences must be put before the court in some manner. Here the affidavits of the Moving Defendants, NSN and WAC essentially ignored the actions and expressions made in the fall of 2021 and failed to provide any real indication of the defences.

The Actions

[107] The Plaintiffs submit that s. 137.1 cannot be used to dismiss its other tortious claims as they were deliberate actions, not to inform the public, but to disrupt the ongoing legitimate business of Cargo County through a “phone zap”, the abuse of social media, the trespass or the rally/protests to publicly shame the principals of Cargo County into paying claims in the midst of the legal process.

[108] The Court of Appeal in Subway Franchise Systems of Canada, Inc. v. Canadian Broadcasting Corporation, 2021 ONCA 25 made it clear that s. 137.1 is not limited to claims such as defamation.

[38] I agree with Trent that the motion judge erred in reaching the conclusion that the claim in negligence did not arise from an expression that related to a matter of public interest. It was an error of law to view s. 137.1 as aimed at a limited category of torts like defamation. It was also an error of law not to appreciate the centrality of expression to this negligence claim.

[39] In Pointes, the claim was not for defamation; it alleged that the defendant had breached a contract by making certain statements and offering certain opinions at an Ontario Municipal Board hearing. Section 137.1 was held to apply to that claim. As this court explained in Pointes (ONCA), the requirement that the proceeding arise from an expression is met where the expression “grounds” the claim. Putting it another way, this court considered the requirement to have been met because the claim “targets” the expression: at paras. 52, 103.

[40] In Pointes (SCC), Côté J. discussed the proper approach to determine when a proceeding “arises from” an expression:

Second, what does “arises from” require? By definition, “arises from” implies an element of causality. In other words, if a proceeding “arises from” an expression, this must mean that the expression is somehow causally related to the proceeding. What is crucial is that many different types of proceedings can arise from an expression, and the legislative background of s. 137.1 indicates that a broad and liberal interpretation is warranted at the s. 137.1(3) stage of the framework. This means that proceedings arising from an expression are not limited to those directly concerned with expression, such as defamation suits. A good example of a type of proceeding that is not a defamation suit, but that nonetheless arises from an expression and falls within the ambit of s. 137.1(3), is the underlying proceeding here, which is a breach of contract claim premised on an expression made by the defendant [Footnote omitted.]: at para. 24.

[41] The negligence claim here arises from an expression, in the sense described both by this court and by the Supreme Court in Pointes. The expression is causally connected to the claim; there is a nexus between them; the expression grounds the claim; and the claim targets the expression. The expression or communication of or about the test results is integral to all aspects of Subway’s negligence claim: the existence of a duty of care, whether the duty was breached, and damages.

(emphasis added)

[109] Although this analysis is not necessary given the court’s conclusion that the Moving Defendants failed to meet their onus that the expressions relate to a matter of public interest, I am persuaded that some of the other causes of action are torts not “grounded” on the expressions intended to communicate information but were actions entirely divorced from any expressions or intention to convey information to the public, notably:

a) The “phone zap”, was not an expression but rather a disruptive tactic with no informational aspect to it; or

b) The deliberate public disclosure and dissemination of the details of the private home of the principals of Cargo County;

c) The trespass claim; or

d) The manipulation of social media to deliberately negatively impact Cargo County’s business by the Moving Defendants and others.

CONCLUSION

[110] The motion is dismissed.

COSTS

[111] Any party seeking costs shall serve and file written submission on entitlement and quantum within two weeks of the release of these reasons. Written submissions shall be limited to 5 pages, with attached Costs Outline and any authorities.

[112] Any responding party shall have one week thereafter to serve and file responding submissions. Written submissions shall be limited to 5 pages with any authorities relied on attached.

[113] There shall be no reply submissions without leave.

RSJ L. Ricchetti Date: March 21, 2022

Court File No.: CV-21-00003646-0000 DATE: 2022 03 21 SUPERIOR COURT OF JUSTICE - ONTARIO RE: 2110120 ONTARIO INC. o/a CARGO COUNTY, RANDEEP SANDHU, KIRANJIT SANDHU, EVANDEEP SANDHU, PAWELDEEP SANDHU Plaintiffs -and- GURMUKHJEET BUTTAR, KARANDIP BUTTAR, DHARAMJOT CLAIR, PARBAT SANGHA, NAUJAWAN SUPPORT NETWORK, JOHN DOE and JANE DOE Defendants COUNSEL: A. Kania, for the Plaintiffs I. McKellar, for the Defendants ENDORSEMENT RSJ RICCHETTI Released: March 21, 2022